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Wednesday, October 26, 2016

Random items (Updated)

• Last term in Heffernan v. City of Patterson, SCOTUS held that a public employee can state a First Amendment retaliation claim where he suffers adverse job action because the employer believes he engaged in protected expression, even if he did not actually do so. Heffernan now has settled the action for $ 1.6 million, including attorney's fees.

• Senate Republicans are beginning to make noise about not confirming any Hillary Clinton nominees to SCOTUS, apparently for the whole of her Term. Clearly, no one is even pretending anymore that this is some principled stand in the name of democratic values (it never was, but at least some pretended). In pushing this position in a radio interview on Wednesday, Ted Cruz pointed for support to comments by Justice Breyer that the Court is doing just fine with eight Justices. It is impossible to know whether Breyer believes that or whether, as Dahlia Lithwick has argued, this is the Justices putting on a brave face to keep themselves out of the political thicket. If the latter, it is ironic that Cruz is using those efforts to pull the Justices even more into the mire.

Perhaps this is all posturing, in light of recent polls. It does hint that a lame-duck confirmation of Merrick Garland is not in the offing.

Update: I agree with several points Dahlia Lithwick makes here: 1) The Chief must play a role as an advocate for the institution, something Taft did well and which is entirely appropriate where the Court's structure is implicated; 2) This should play as FDR's court-packing plan redux--one party trying to manipulate the size of the Court for partisan gain. That it is not says much about the current partisan divide--FDR's plan failed because Democrats (who held the Senate majority) bailed on it; 3) Justice Breyer is at odds with others who have spoken out about this stonewalling. And that ups the irony of Cruz seizing on Breyer's attempts at optimism to draw out the dispute.

Posted by Howard Wasserman on October 26, 2016 at 09:19 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


Politico quoted Justice Breyer saying this:

“They had 10 members for several years after the civil war. They functioned with an even number of members.”


In 1866, to limit the power of President Andrew Johnson, a new law that did not fill vacancies (down to 7) started to kick in. In 1863, the Supreme Court did start to have 10 justices, but often did not all meet together given sickness and vacancies. The nine justice law passed in 1869. So, it was not functionally in place "for several years," surely not "after the Civil War."

He also noted the Supreme Court had six justices for several years. Sure. It started that way until it went to seven in the early 18th Century. All the same, not only were there very few cases, the Supreme Court was not very influential but once Marshall came in, he usually obtained unanimity.

So, Breyer - understandably - was trying a bit too hard to undersell the differences.

Posted by: Joe | Oct 27, 2016 11:27:07 AM

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